Deborah W. Denno Arthur A. McGivney Professor of Law ...
Transcript of Deborah W. Denno Arthur A. McGivney Professor of Law ...
SENTENCING AND NEUROSCIENCE
Deborah W. DennoArthur A. McGivney Professor of LawFounding Director, Neuroscience and
Law CenterFordham University School of Law
The Case of John McCluskey
New Mexico, 2014 convicted of carjacking and murder
brain scans admitted, showed substantial damage to frontal lobe
Court Decision no death penalty jurors viewed brain abnormalities
as mitigating factor
The Case of Grady Nelson
Florida, 2010 convicted of first degree murder brain mapping evidence
ruled admissible for the first time
Court Decision no death penalty jurors influenced by
neuroscience evidence
“The branch of life sciences that studies the brain and nervous systems [including] . . .
brain processes such as sensation, perception, learning, memory, and movement.”
Cognitive Neurosciencecognitive science, psychology & neuroscience
mechanisms of the mind
Neuroscience Defined
American Association for the Advancement of Science
Key criminal law concepts of culpability depend on the
internal workingsof individuals’ minds.
Neuroscience Evidence as a Double-Edged Sword
Neuroscience evidence may diminish a defendant’s blameworthiness for his
crime even as it indicates that there is a probability that he will be dangerous
in the future.“The Myth of the Double-Edged Sword”
The Neuroscience Study
• Unprecedented analysis of all criminal law cases (800) addressing neuroscience evidence between 1992-2012
• Extensive and systematic empirical data that show how neuroscience evidence is used in courtrooms
What the Neuroscience Study Reveals
• Neuroscience evidence has been integratedinto the criminal justice system in ways that have never before been documented or analyzed.
• The criminal justice system is willing to accept and comprehend the strengths and limitations of neuroscience evidence in ways that discredit the myth of the double-edged sword.
The key question is not whether neuroscience evidence should be used in the criminal
justice system, but rather how and why.
Neuroscience Evidence Defined
Two broad groups of tests:
• “imaging tests” – generated by computer images of a human brain
• “non-imaging tests” – administered by a medical professional to an individual
• defendant (514)• victim & defendant (39)
553“Defendant
Cases”
Categories of CasesVictim(247)
Defendant(514)
Victim &Defendant(39)
4.88%
30.88%
64.25%
What the Neuroscience Study Reveals
Stages of Cases: in a capital case, neuroscience may be incorporated during the guilt-or-innocence phase and/or the penalty phase
Aggravation v. Mitigation• Most death penalty states require jury to
consider State’s evidence of aggravation and defendant’s evidence of mitigation.
• Aggravating factors must outweigh mitigating factors for defendant to be sentenced to death.
Aggravation v. Mitigation cont’d. first empirical study to systematically investigate how courts assess the mitigating and aggravating strength of neuroscience evidence usually offered to mitigate punishments, especially in the penalty phases of death penalty trials courts typically accept neuroscience evidence for this purpose
This finding directly controverts the popular image of neuroscience evidence
as a double-edged sword.
Ineffective Assistance of Counsel“Strickland Claim”
U.S. Supreme Court
• attorneys must investigate “all reasonably available mitigating evidence”
• includes defendants’ cognitive and intellectual deficiencies; such evidence has a pronounced impact on mitigation, especially in capital cases
Strickland v. Washingtontwo-pronged test: (1) counsel’s performance must be “deficient” (2) this deficient performance must have
“prejudiced” the defendant
relief typically granted in form of: new penalty phase reversal of conviction for a new trial remand with instructions to hold new
evidentiary hearing
• poor quality; “but for” cause of resulting conviction
What the NeuroscienceStudy Reveals:
The Success of Strickland Claims
Among the Strickland claims recorded in the Study’s 553 Defendant Cases, nearly all of
the successful claims were based on an attorney’s failure to appropriately investigate, gather, or understand
neuroscience evidence.
How Counsel Damage Their
Cases:
• actively v. passively
• failure to adequately present a case in mitigation (FTPM)
Why Counsel Omit or Mishandle Neuroscience Evidence
• sentencing phase was unexpected• ignorance in mishandling of evidence
or in communications with experts or clients
• straightforward incompetence• belief that neuroscience evidence
would do more harm than good
Courts Reject “Strategic Decision”• Hurst v. State – counsel failed to investigation
and present “mental mitigation” evidence, claiming it would be “inconsistent” with client’s innocence
• Turpin v. Lipham - counsel failed to hire medical expert, claiming client’s mental health records indicated both aggravating and mitigating factors
• Simmons v. State - counsel failed to investigate, uncover, and present mitigating evidence
Double-edged sword argument is unpersuasive.
What Do Courts Expect From Attorneys Using Neuroscience?
• What type of neuroscience evidence will be used?
• How will the court handle that evidence? • When and why are the attorneys in these
cases deemed ineffective?
Case Studies Representing Successful Neuroscience-Related
Strickland Claims(1) Simmons v. State
105 So. 3d 475 (Fla. 2012)failure to investigate/present mitigating evidence
(2) Frierson v. Woodford 463 F.3d 982 (9th Cir. 2006)
failure to review prior history and testimony
(3) Hooper v. Mullin314 F.3d 1162 (10th Cir. 2002)
failure to properly handle evidence and experts
Case Studies cont’d.
(4) Waters v. Zant 979 F.2d 1473 (11th Cir. 1992), vacated, 11 F.3d 139 (11th Cir. 1993)failure to distinguish aggravating and mitigating circumstances
(5) Stankewitz v. Wong659 F. Supp. 2d 1103 (E.D. Cal. 2009)
failure to research early childhood disorders
(6) James v. Ryan 679 F.3d 780 (9th Cir. 2012), vacated, 133 S. Ct. 1579 (2013)
failure to evaluate mental health and drug abuse
Strickland Claims – Summary
It is critical for attorneys to fully investigate and present mitigation evidence, particularly in death penalty cases.
Neuroscience--in all of its many facets--is an important component of mitigation.
Future Dangerousness:
Neuroscience and Future Dangerousness
likelihood that defendant will commit future crimes aggravating factor considered at penalty phase of capital trial
Prosecutors are unlikely to seek the death penalty based on the claim that
neuroscience evidence indicates future dangerousness.
Simmons v. South Carolina
512 U.S. 154 (1994)
If a prosecutor in a capital case raises concerns
regarding a defendant’s future dangerousness,
the jury must be instructed that life in
prison is equivalent to life without
the possibility of parole.
Themes Among Future Dangerousness Cases
• In all but one of the cases, the court affirmed the defendant’s death sentence.
• State v. Ross, 646 A.2d 1318 (Conn. 1994)
• In the remaining cases, attorneys demonstrated far less egregious behavior than in the Strickland claim cases
• A number of the remaining cases referred to neuroscience mitigation evidence as a double-edged sword.
Future Dangerousness Cases:Neuroscience as a Double-Edged Sword
• Bryan v. Mullin 335 F.3d 1207 (10th Cir. 2003) (Henry, J., concurring in part and dissenting in part)
• Ex parte Lucas 877 S.W.2d 315 (Tex. Crim. App. 1994)
• Maldonado v. Thaler 662 F. Supp. 2d 684 (S.D. Tex. 2009), aff’d, 625 F.3d 229 (5th Cir. 2010)
• Dowthitt v. Johnson180 F. Supp. 2d 832 (S.D. Tex. 2000)
Future Dangerousness CasesFleenor v. Farley47 F. Supp. 2d 1021 (S.D. Ind. 1998), aff’d, 171 F.3d 1096 (7th Cir. 1999) unanticipated expert testimony
Court found that counsel was aware that “the nature of any mental disorder or behavioral problem would be explored in detail, including any persistent and continuing patterns of violent conduct.”
Future Dangerousness CasesBryan v. Mullin 335 F.3d 1207 (10th Cir. 2003) (Henry, J., concurring in part and dissenting in part) the slide from mitigation to danger Counsel lacked medical evidence
necessary to adequately argue an insanity plea Bryan explicitly did not want his
counsel to present evidence portraying him as mentally ill Bryan told counsel that he would not
accept a guilty plea, even if doing so meant avoiding a death sentence
Future Dangerousness CasesMaldonado v. Thaler662 F. Supp. 2d 684 (S.D. Tex. 2009), aff’d, 625 F.3d 229 (5th Cir. 2010) the special case of mental retardationCourt found that “[t]he double-edged nature of the mitigating evidence would make it not reasonably probable that the jury would answer the special issues differently had trial counsel emphasized low intelligence in the punishment phase.”
Future Dangerousness CasesPeople v. Peeples 793 N.E.2d 641 (Ill. 2002)• the two sides of cognitive deficiency
Court found that if the jury had heard evidence regarding Peeples’s mental impairments, in addition to Peeples’s history of violent
behavior, “the sentencer could have reasonably concluded that this evidence demonstrated
[Peeples’s] future dangerousness.”
Future Dangerousness CasesSmith v. Workman 550 F.3d 1258 (10th Cir. 2008) the role of psychiatric experts
Ake v. Oklahoma 470 U.S. 68 (1985)
“When a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist.”
Contradiction Presented by the Double-Edged Sword
Courts urge attorneys to fully investigate and present mitigating evidence such as
neuroscience.
Yet, in a limited number of cases, courts also accept arguments that neuroscience
evidence can be indicative of a defendant’s future dangerousness.
ConclusionThe criminal justice system accepts: the strengths and limitations of neuroscience
evidence in ways that discredit the myth of the double-edged sword
modern methods of assessing defendants’ mental capabilities, and expects attorneys to do the same
As courts continue to support neuroscience tools, empirical data will provide a foundation
for discussions regarding the use of neuroscience evidence in criminal cases.
Questions?